Right to Bear Arms

What does the Second Amendment say about the right to bear arms?

The Second Amendment to the Constitution states that “a well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This language within the Amendment has been debated  – is the right to bear arms intended for militias or all people? Do these rights pertain to all firearms, or only certain kinds? Can firearm ownership be restricted, as other civil liberties are, or are guns a unique situation in American constitutional law?

Have interpretations of the Second Amendment changed over time?

Yes. During the 1800s and 1900s, the Second Amendment was interpreted according to the ‘collective right’ model of gun ownership. In this model, the Supreme Court interpreted the 2nd Amendment as protecting an individual’s right to serve in a collective militia and to own a gun for that purpose, but not for the purpose of individual protection only.

This interpretation began to change in the 1960s, with some legal scholarship suggesting the individual right interpretation, and maybe responding to high-visibility gun-related events like the assassination of JFK. Beginning in the 1970s, some legal scholars began to interpret the amendment as a protection against the potential for U.S. federal government overreach itself, sometimes called the ‘insurrectionist’ model. At the same time, individuals and groups supporting broad gun rights brought lawsuits against state and local regulations.

The Supreme Court has ruled only five times on the Second Amendment – once in 1886, and four times since 2008. In 2008, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to own a gun even when unconnected to a militia. In this ruling, the Court also held that these rights are not absolute, confirming that there is room for laws that restrict gun ownership.

In 2010, the Supreme Court ruled in McDonald v. City of Chicago that the Second Amendment applies to state and local governments as well as the federal government. The City of Chicago had passed a law limiting the possession and carry of a handgun within city limits. The Supreme Court ruled that this ban limited individuals’ constitutional right to self-protection under the Second Amendment as interpreted in the Heller decision.

In 2016, the Supreme Court ruled unanimously in Caetano v. Massachusetts that individuals have a constitutional right to forms of “bearable arms” beyond just those that would have been available at the time of the writing of the Second Amendment. This case related to the possession of a stun gun.

Finally, in 2022, the New York State Rifle and Pistol Association, Inc. v. Bruen Supreme Court decision changed the test of whether state and local laws violate the Second Amendment. The ruling found that New York’s gun control laws requiring a person to show proper cause to obtain a license to buy a firearm was in violation of the 14th Amendment, which in part makes the 2nd Amendment applicable to the states. The Court held that a citizen need not demonstrate cause to exercise their right to self defense by purchasing a firearm, and that open carry of a firearm cannot be restricted except in instances where it incites fear and intimidation.

What gun ownership restrictions exist in the U.S. today?

Congress has passed a handful of laws to tax the sale of firearms and to establish regulations for the ownership and use of firearms. The National Firearms Act (NFA) of 1934 requires the sale of certain types of firearms (including sawed-off shotguns, machine guns, and silencers) be registered with the Secretary of the Treasury. The Gun Control Act of 1968 narrowed the definition of who could own, manufacture, or sell a gun.

States and local governments can also create ownership restrictions. For example, states can determine whether background checks or permits are required for handgun purchase, who can or cannot buy a gun based on the person’s past, age restrictions, and what will be required for licenses and training. Since 2008, many state and local gun laws have been upheld as constitutional, including laws restricting the concealed and open carry of loaded guns in public; bans on assault weapons, large capacity magazines, and silencers; prohibitions on dangerous people possessing guns; firearm design safety standards; safe storage requirements; waiting period laws; and private-sale background checks and licensing laws.

In some states, local governments have jurisdiction to regulate gun carriage and usage. For example, the City of New York issues its own handgun, rifle, and shotgun permits separately from the New York State government. To own or carry a firearm in the City, these municipal permits are required in addition to state permits.

The chart below shows state regulations of handgun carry. Twenty-six states, in black, do not have permit requirements for carrying handguns in public, and twenty-four states, in gray, require permits to open- or conceal-carry a gun.

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What are current proposals for changing gun rights?

States have widely varying approaches to gun control legislation. In 2021, a trend of enacting so-called “constitutional carry” laws picked up across the U.S., mostly but not exclusively in more conservative jurisdictions. In these states, no permit is required for a person of legal age (usually 18 or 21) to purchase a handgun or openly carry it in public. In some instances, additional restrictions apply, such as a permit requirement for concealed carry or purchasing restrictions based on criminal history. Currently, 26 states have no permit requirement for concealed carry, and an additional 13 require a permit for concealed carry.

Some states, such as New Jersey, require residents to file for a permit and complete additional steps in order to carry a concealed handgun. This process typically takes between 30 to 120 days. An individual must undergo a national background check, a firearms safety class, pass a field safety test including safe handling, loading and unloading, unholstering, and minimum marksmanship skills, and not possess certain disabilities. In the case of New Jersey, state law also restricts such possession in certain places, including zoos, public parks, public libraries, museums, bars, healthcare facilities, schools, and childcare facilities.

The federal Bipartisan Safer Communities Act, signed into law on June 25, 2022, narrows some definitions of who is allowed to purchase, own, or sell a firearm, including minors with histories of mental health issues, and dating partners with histories of domestic violence.

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